Friday, 4 August 2017

Canadian law
required airlines, in the interests of the fight against serious crime and
terrorism, to provide certain information about passengers (API/PNR data),
which obligation required airlines under EU data protection regulations to
transfer data to outside the EU. The PNR
data includes the names of air passengers, the dates of intended travel, the
travel itinerary, and information relating to payment and baggage. The PNR data
may reveal travel habits, relationships between two individuals, information on
the financial situation or the dietary habits of individuals. To regularise the
transfer of data, and to support police cooperation, the EU negotiated an
agreement with Canada specifying the data to be transferred, the purposes for
which the data could be used, as well as some processing safeguard provisions
(e.g. use of sensitive data, security obligations, oversight requirements,
access by passengers). The data was
permitted to be retained for five years, albeit in a depersonalised form. Further disclosure of the data beyond Canada
and the Member States was permitted in limited circumstances. The European Parliament requested an opinion
from the Court of Justice under Article 218(11) TFEU as to whether the
agreement satisfied fundamental human rights standards and whether the
appropriate Treaty base had been used for the agreement.

Opinion

The Court noted
that the agreement fell within the EU’s constitutional framework, and must
therefore comply with its constitutional principles, including (though this
point was not made express), respect for fundamental human rights (whether as a
general principle or by virtue of the EU Charter – the EUCFR).

After dealing
with questions of admissibility, the Court addressed the question of
appropriate Treaty base. It re-stated existing principles (elaborated, for
example, in Case
C‑263/14Parliament v Council, judgment 14
June 2016, EU:C:2016:435) with regard to choice of Treaty base generally: the
choice must rest on objective factors (including the aim and the content of
that measure) which are amenable to judicial review. In this context the Court found that the
proposed agreement has two objectives: safeguarding public security; and
safeguarding personal data [opinion, para 90].
The Court concluded that the two objectives were inextricably linked:
while the driver for the need to PNR data was protection of public security,
the transfer of data would be lawful only if data protection rules were
respected [para 94]. Therefore, the
agreement should be based on both Article 16(2) (data protection) and Article
87(2)(a) TFEU (police cooperation). It
held, however, that Article 82(1)(d) TFEU (judicial cooperation) could not be
used, partly because judicial authorities were not included in the agreement.

Looking at the
issue of data protection, the Court re-stated the question as being ‘on the
compatibility of the envisaged agreement with, in particular, the right to
respect for private life and the right to the protection of personal data’
[para 119]. It then commented that
although both Article 16 TFEU and Article 8 EUCFR enshrine the right to data
protection, in its analysis it would refer to Article 8 only, because that
provision lays down in a more specific manner the conditions for data
processing. The agreement refers to the
processing of data concerning identified individuals, and therefore may affect the
fundamental right to respect for private life guaranteed in Article 7 EUCFR as
well as the right to protection to personal data in Article 8 EUCFR. The Court
re-iterated a number of principles regarding the scope of the right to private
life:

‘the
communication of personal data to a third party, such as a public authority,
constitutes an interference with the fundamental right enshrined in
Article 7 of the Charter, whatever the subsequent use of the information
communicated. The same is true of the retention of personal data and access to
that data with a view to its use by public authorities. In this connection, it
does not matter whether the information in question relating to private life is
sensitive or whether the persons concerned have been inconvenienced in any way
on account of that interference’ [para 124].

The transfer of
PNR data and its retention and any use constituted an interference with both
Article 7 [para 125] and Article 8 EUCFR [para 126]. In assessing the
seriousness of the interference, the Court flagged ‘the systematic and
continuous’ nature of the PNR system, the insight into private life of
individuals, the fact that the system is used as an intelligence tool and the
length of time for which the data is available.

Interferences with these rights may be justified. Nonetheless, there are
constraints on any justification: Article 8(2) of the EU Charter specifies that processing
must be ‘for specified purposes and on the basis of the consent of the person
concerned or some other legitimate basis laid down by law’; and, according to
Article 52(1) of the EU Charter, any limitation must be provided for by
law and respect the essence of those rights and freedoms. Further, limitations must
be necessary and genuinely meet objectives of general interest recognised by
the Union or the need to protect the rights and freedoms of others.

Following WebMindLicenses
(Case C‑419/14, judgment of 17 December 2015, EU:C:2015:832,
para 81), the law that permits the interference should also set down the
extent of that interference. Proportionality requires that any derogation from
and limitation on the protection of personal data should apply only insofar as
is strictly necessary. To this end and to prevent the risk of abuse, the
legislation must set down ‘clear and precise rules governing the scope and
application of the measure in question and imposing minimum safeguards’,
specifically ‘indicat[ing] in what circumstances and under which conditions a
measure providing for the processing of such data may be adopted’ [para 141],
especially when automated processing is involved.

The Court
considered whether there was a legitimate basis for the processing, noting that
although passengers may be said to consent to the processing of PNR data, this
consent related to a different purpose. The transfer of the PNR data is not
conditional on the specific consent of the passengers and must therefore be
grounded on some other basis, within the terms of Article 8(2) EUCFR. The Court
rejected the Parliament’s submission that the meaning of ‘law’ be restricted to
‘legislative act’ internally. The Court, following the reasoning of the
Advocate General, found that in this regard the international agreement was the
external equivalent of the legislative act.

In line with its
previous jurisprudence, the Court accepted that public security is an objective
of public interest capable of justifying even serious interferences with
Articles 7 and 8 EUCFR. It also noted that everybody has the right to security
of the person (Art. 6 EUCFR), though this point was taken no further. The Court
considered that PNR data revealed only limited aspects of a person’s private
life, so that the essence of the right was not adversely affected [para 151].
In principle, limitation may then be possible. The Court accepted that PNR data
transfer was appropriate, but not that the test of necessity was satisfied. It
agreed with the Advocate General that the categories of data to be transferred
were not sufficiently precise, specifically ‘available frequent flyer and
benefit information (free tickets, upgrades, etc.)’, ‘all available contact
information (including originator information)’ and ‘general remarks including
Other Supplementary Information (OSI), Special Service Information (SSI) and
Special Service Request (SSR) information’. Although the agreement required the
Canadian authorities to delete any data transferred to them which fell outside
these categories, this obligation did not compensate for the lack of precision
regarding the scope of these categories.

The Court noted
that the agreement identified a category of ‘sensitive data’; it was therefore
to be presumed that sensitive data would be transferred under the agreement.
The Court then reasoned:

any measure based on the premiss that one or more of the
characteristics set out in Article 2(e) of the envisaged agreement may be
relevant, in itself or in themselves and regardless of the individual conduct
of the traveller concerned, having regard to the purpose for which PNR data is to
be processed, namely combating terrorism and serious transnational crime, would
infringe the rights guaranteed in Articles 7 and 8 of the Charter, read in
conjunction with Article 21 thereof [para 165]

Additionally,
any transfer of sensitive data would require a ‘precise and particularly solid’
reason beyond that of public security and prevention of terrorism. This justification
was lacking. The transfer of sensitive data and the framework for the use of
those data would be incompatible with the EU Charter [para 167].

While the
agreement tried to limit the impact of automated decision-making, the Court
found it problematic because of the need to have reliable models on which the
automated decisions were made. These models, in the view of the Court, must
produce results that identify persons under a ‘reasonable suspicion’ of
participation in terrorist offences or serious transnational crime and should
be non-discriminatory. Models/databases should also be kept up-to-date and
accurate and subject to review for bias. Because of the error risk, all
positive automated decisions should be individually checked.

In terms of the
purposes for processing the data, the definition of terrorist offences and
serious transnational crime were sufficiently clear. There were however other
provisions, allowing case-by-case assessment.
These provisions (Article 3(5)(a) and (b) of the treaty) were found to
be too vague. By contrast, the Court
determined that the authorities who would receive the data were sufficiently
identified. Further, it accepted that the transfer of data of all passengers,
whether or not they were identified as posing a risk or not, does not exceed
what is necessary as passengers must comply with Canadian law and ‘the identification,
by means of PNR data, of passengers liable to present a risk to public security
forms part of border control’ [para 188].

Relying on its recent
judgment in Tele2/Watson (Joined
Cases C‑203/15 and C‑698/15, EU:C:2016:970), which I discussed here,
the Court reiterated that there must be a connection between the data retained
and the objective pursued for the duration of the time the data are held, which
brought into question the use of the PNR data after passengers had disembarked
in Canada. Further, the use of the data
must be restricted in accordance with those purposes. However,

where there is objective evidence from which it may be inferred that
the PNR data of one or more air passengers might make an effective contribution
to combating terrorist offences and serious transnational crime, the use of
that data does not exceed the limits of what is strictly necessary [para 201].

Following
verification of passenger data and permission to enter Canadian territory, the
use of PNR data during passengers’ stay must be based on new justifying circumstances.
The Court expected that this should be subject to prior review by an
independent body. The Court held that the agreement did not meet the required
standards. Similar points were made,
even more strongly, in relation to the use of PNR data after the passengers had
left Canada. In general, this was not strictly necessary, as there would no
longer be a connection between the data and the objective pursued by the PNR
Agreement such as to justify the retention of their data. PNR data may be
stored in Canada, however, when particular passengers present a risk of
terrorism of serious transnational crime. Moreover, given the average lifespan
of international serious crime networks and the duration and complexity of
investigations relating to them, the Court did not hold that the retention of
data for five years went beyond the limits of necessity [para 209].

The agreement
allows PNR data to be disclosed by the Canadian authority to other Canadian
government authorities and to government authorities of third countries. The
recipient country must satisfy EU data protection standards; an international
agreement between the third country and the EU or an adequacy decision would be
required. There is a further, unlimited and ill-defined possibility of disclosure
to individuals ‘subject to reasonable legal requirements and limitations ...
with due regard for the legitimate interests of the individual concerned’. This
provision did not satisfy the necessity test.

To ensure that
the individuals’ rights to access their data and to have data rectified is
protected, in line with Tele2/Watson,
passengers must be notified of the transfer of their PNR data to Canada and of
its use as soon as that information is no longer liable to jeopardise the
investigations being carried out by the government authorities referred to in
the envisaged agreement. In this respect, the agreement is deficient. While
passengers are told that the data will be used for security checks/border
control, they are not told whether their data has been used by the Canadian
Competent Authority beyond use for those checks. While the Court accepted that the agreement
provided passengers with a possible remedy, the agreement was deficient in that
it did not guarantee in a sufficiently clear and precise manner that the
oversight of compliance would be carried out by an independent authority, as
required by Article 8(3) EUCFR.

Comment

There are lots of
issues in this judgment, of interest from a range of perspectives, but its length
and complexity means it is not an easy read. Because of these characteristics,
a blog – even a lengthy blog – could hardly do justice to all issues,
especially as in some instances, it is hardly clear what the Court’s position
is.

On the whole the
Court follows the approach of its Advocate General, Mengozzi, on a number of
points specifically referring back to his Opinion.
There is, as seems increasingly to be the trend, heavy reliance on existing
case law and it is notable that the Court refers repeatedly to its ruling in Tele2/Watson.
This may be a judicial attempt to
suggest that Tele2/Watson was not an
aberration and to reinforce its status as good law, if that were in any doubt.
It also operates to create a body of surveillance law rulings that are
hopefully consistent in underpinning principles and approach, and certainly
some of the points in earlier case law are reiterated with regards to the
importance of ex ante review by independent bodies, rights of redress and the
right of individuals to know that they have been subject to surveillance.

The case is of
interest not only in regards mass surveillance but more generally in relation
to Article 16(2) TFEU. It is also the first time an opinion has been given on a
draft agreement considering its compatibility with human rights standards as
well as the appropriate Treaty base. In this respect the judgment may be a
little disappointing; certainly on Article 16, the Court did not go into the
same level of detail as in the AG’s opinion [AG114-AG120]. Instead it equated
Article 16 TFEU to Article 8 EUCFR, and based its analysis on the latter
provision.

As a general
point, it is evident that the Court has adopted a detailed level of review of
the PNR agreement. The outcome of the
case has widely been recognised as having implications, as –for example –
discussed earlier
on this blog. Certainly, as the Advocate
General noted, possible impact on other PNR agreements [AG para 4] which relate
to the same sorts of data shared for the same objectives. The EDPS made this point too, in the context
of the EU PNR Directive:

Since the functioning of the EU PNR and the EU-Canada schemes are
similar, the answer ofthe Court mayhave a significant impact on the validity of
all other PNR instruments …. [Opinion 2/15, para 18]

There are other
forms of data sharing agreement, for example, SWIFT, the Umbrella
Agreement, the Privacy Shield (and other
adequacy decisions) the last of which is coming under pressure in any event (DRI
v Commission (T-670/16) and La
Quadrature du Net and Others v Commission (T-738/16)). Note that in this context, there is not just
a question of considering the safeguards for protection of rights but also
relates to Treaty base. The Court found
that Article 16 must be used and that – because there was no role for judicial
authorities, still less their cooperation – the use of Article 82(1)(d) is
wrong. It has, however, been used for
example in regards to other PNR agreements.
This means that that the basis for those agreements is thrown into
doubt.

While the Court
agreed with its Advocate General to suggest that a double Treaty base was
necessary given the inextricable linkage, there is some room to question this
assumption. It could also be argued that
there is a dominant purpose, as the primary purpose of the PNR agreement is to
protect personal data, albeit with a different objective in view, that of
public security. In the background, however, is the position of the UK, Ireland
and Denmark and their respective ‘opt-outs’ in the field. While a finding of a
joint Treaty base made possible the argument of the Court that:

since the
decision on the conclusion of the envisaged agreement must be based on both
Article 16 and Article 87 TFEU and falls, therefore, within the scope
of Chapter 5 of Title V of Part Three of the FEU Treaty in so far as it must be
founded on Article 87 TFEU, the Kingdom of Denmark will not be bound, in
accordance with Articles 2 and 2a of Protocol No 22, by the provisions
of that decision, nor, consequently, by the envisaged agreement. Furthermore,
the Kingdom of Denmark will not take part in the adoption of that decision, in
accordance with Article 1 of that protocol. [para 113, see also para 115]

The position
would, however, have been different had the agreement be found to have been
predominantly about data protection and therefore based on Article 16 TFEU
alone.

Looking at the
substantive issues, the Court clearly accepted the need for PNR to challenge
the threat from terrorism, noting in particular that Article 6 of the Charter
(the “right to liberty and security of person”) can justify the processing of
personal data. While it accepted that this resulted in systemic transfer of
large quantities of people, we see no comments about mass surveillance. Yet, is
this not similar to the ‘general and indiscriminate’ collection and analysis
rejected by the Court in Tele2/Watson
[para 97], and which cannot be seen as automatically justified even in the
context of the fight against terrorism [para 103 and 119]? Certainly, the EDPS took
the view in its opinion on the EU PNR Directive that “the non-targeted and bulk
collection and processing of data of the PNR scheme amount to a measure of
general surveillance” [Opinion 1/15,
para 63]. It may be that the difference is in the nature of the data; even if
this is so, the Court does not make this argument. Indeed, it makes no argument
but rather weakly accepts the need for the data. On this point, it should be noted that “the
usefulness of large-scale profiling on the basis of passenger data must be
questioned thoroughly, based on both scientific elements and recent studies” [Art.
29 WP Opinion 7/2010, p. 4]. In this aspect, Opinion 1/15 is not as strong a stand as Tele2/Watson [c.f para 105-106]; it seems that the Court was less
emphatic about significance of surveillance even than the Advocate General [AG
176].

In terms of
justification, while the Court accepts that the transfer of data and its
analysis may give rise to intrusion, it suggests that the essence of the right
has not been affected. In this it follows the approach in the communications
data cases. It is unclear, however, what
the essence of the right is; it seems that no matter how detailed a picture of
an individual can be drawn from the analysis of data, the essence of the right
remains intact. If the implication is
that where the essence of the right is affected then no justification for the
intrusion could be made, a narrow view of essence is understandable. This does not, however, answer the question
of what the essence is and, indeed, whether the essence of the right is the
same for Article 7 as for Article 8. In
this case, the Court has once again referred to both articles, without
delineating the boundaries between them, but then proceeded to base its
analysis mainly on Article 8.

In terms of
relationship between provisions, it is also unclear what the relationship is
between Art 8(2) and Art 52. The Court
bundles the requirements for these two provisions together but they serve
different purposes. Article 8(2) further elaborates the scope of the right;
Article 52 deals with the limitations of Charter rights. Despite this, it seems that some of the
findings will apply Article 52 in the context of other rights. For example, in
considering that an international agreement constitutes law for the purposes of
the EUCFR, the Court took a broader approach to meaning of ‘law’ than the
Parliament had argued for. This however
seems a sensible approach, avoiding undue formality.

One further
point about the approach to interpreting exceptions to the rights and Article
52 can be made. It seems that the Court has not followed the Advocate General
who had suggested that strict necessity should be understood in the light of
achieving a fair balance [AG207].

Some specific
points are worth highlighting. The Court held that sensitive data (information
that reveals racial or ethnic origin, political opinions, religious or
philosophical beliefs, trade-union membership, information about a person’s
health or sex life) should not be transferred. It is not clear what
interpretation should be given to these data, especially as regards proxies for
sensitive data (e.g. food preferences may give rise to inferences about a
person’s religious beliefs).

One innovation
in the PNR context is the distinction the Court introduced between use of PNR
data on entry, use while the traveller is in Canada, and use after the person
has left, which perhaps mitigates the Court’s acceptance of undifferentiated
surveillance of travellers. The Court’s
view of the acceptability of use in relation to this last category is the most stringent. While the Court accepts the link between the
processing of PNR data on arrival, after departure the Court expects that link
to be proven, and absent such proof, there is no justification for the
retention of data. Does this mean that on departure PNR data of persons who are
not suspected of terrorism or transnational crime should be deleted at the
point of their departure? Such a requirement surely gives rise to practical
problems and would seem to limit the Court’s earlier acceptance of the use of
general PNR data to verify/update computer models [para
198].

One of the
weaknesses of the Court’s caselaw so far has been a failure to consider
investigatory techniques, and whether all are equally acceptable. Here we see the Court beginning to consider the
use of automated intelligence techniques.
While the Court does not go into detail on all the issues to which
predictive policing and big data might give rise, it does note that models must
be accurate. It also refers to Article
21 EUCFR (discrimination). In that this
section is phrased in general terms, it has potentially wide-reaching
application, potentially even beyond the public sector.

The Court’s
judgment has further implications as regards the sharing of PNR and other security
data with other countries besides Canada, most notably in the context of EU/UK
relations after Brexit. Negotiators now have a clearer indication of what it
will take for an agreement between the EU and a non-EU state to satisfy the
requirements of the Charter, in the ECJ’s view. Time will tell what impact this
ruling will have on the progress of those talks.

Sunday, 23 July 2017

At the heart of the contested
issue of asylum in the EU – including the current perceived ‘refugee/migrant
crisis’ – is the definition of who is a ‘refugee’, or is at least entitled
instead to a form of ‘subsidiary protection’ for those fleeing threats of ‘serious
harm’. Refugees and people with subsidiary protection receive more legal protection
and status than many other non-EU citizens, in particular irregular migrants.

Unsurprisingly then, the proposed
revision of the EU legislation on this issue forms part of the broader overhaul
of all EU asylum laws proposed in 2016, as a response to the perceived crisis. Recently
the EU governments agreed their position
on the proposal, which must now be negotiated with the European Parliament (its
negotiating position is set out here).

Most of the other 2016 proposals
are still under negotiation (I’ll discuss them as part of an update of recent
EU immigration and asylum developments, coming soon). But since the ‘qualification’
rules are a cornerstone of EU asylum law, the latest development calls for a
more in-depth analysis. In particular, will the new law meet the Commission’s
objectives for dealing with the ‘crisis’: more
harmonisation, an overall
reduction in protection standards, and deterrents for ‘secondary’ movements between Member States?

The proposal aims to implement
the UN Refugee Convention (which
the EU refers to as the ‘Geneva Convention’) in more detail, as regards both
the definition of ‘refugee’ and the rights which refugees receive. It also
defines ‘subsidiary protection’ and sets out the rights which subsidiary
protection beneficiaries are entitled to.

It will replace the existing EU law
on the subject. As part of the ‘first phase’ of the Common European Asylum
System (CEAS), an initial Qualification
Directive was adopted in 2004. A ‘second
phase’ Qualification Directive replaced it in 2011. (I analysed the
negotiation of the latter Directive here;
there’s also a lengthy analysis of it by Madeline Garlick and Violeta Moreno
Lax in EU
Immigration and Asylum Law: Text and Commentary). The UK and Ireland opted
in to (and are still bound by) the first phase Directive, but not the second
phase Directive or the 2016 proposal; Denmark is not bound by any of them.
After Brexit, UK citizens will be able to apply for asylum in the EU.

Basic legal framework

To give effect to the objective
of further harmonisation, the 2016 proposal will replace the 2011 Directive
with a Regulation, with the consequence that EU law on this subject will be
directly applicable, rather than applying through the medium of national
legislation giving effect to a Directive. To the same end, the Regulation will
also eliminate Member States’ power in the current law to set more favourable
standards as long as they are compatible with the Directive – although this
power has already been curtailed by the ECJ’s judgments in B
and D and M’Bodj
(the latter ruling is discussed here).
The new Regulation will reflect that case law, by noting that Member States are
free to retain or establish a separate status of humanitarian protection, as
long as there is no confusion with the (EU harmonised) notions of refugee or
subsidiary protection status.

This shift toward harmonisation is
also manifested by a removal of most options under the Directive, with the
effect of lowering standards overall, since most of the options are possibilities
for Member States to offer less protection than under the standard rules. On
the other hand, the Commission’s desire to have the new law play a role in
immediate ‘crisis management’ would be thwarted by Member States, who want the
law to apply in two years’ time – rather than the six months desired by the
Commission. (Note that the EP wants it to apply even more quickly than the
Commission, though).

Turning to the details of the
proposal, there are four main elements to the law: common rules (applying to
both refugee and subsidiary protection status); the definition of ‘refugee’;
the definition of subsidiary protection; and the content of status (ie the
benefits people with status receive).

Common rules

Family members of refugees and
people with subsidiary protection will be given extra rights in the new law
(see below), and they will be defined slightly more broadly. A ‘family member’
will now include relationships formed outside the country of refuge, not just
those formed inside the country or origin. This means, for instance, that the
spouse of a Syrian refugee who married him while in Turkey or Lebanon, and the
children of that couple born in such countries, would now be defined as ‘family
members’.

The rules on assessment of asylum
applications will be extended to include refugees resettled directly from
non-EU countries, assuming that a separate proposal
on resettlement is agreed. It will now be mandatory, not optional, for the
main burden of proof to rest upon the applicant to show why the claim for
refugee or subsidiary protection status is justified; and a new clause in the
preamble will reflect the ECJ’s 2014 case law (discussed here)
which limits the intrusiveness of Member States’ questioning of the credibility
of LGBTI asylum-seekers.

Next, the new law will harmonise
the use of an exception to the rules – and
lower the standards of protection. While the Regulation will retain the notion
of an application for refugee or subsidiary protection status ‘sur place’ – meaning the asylum seeker
left the allegedly unsafe country of origin before
it became unsafe – the exception to this rule will become mandatory. At
present, this exception gives Member States an option to ‘normally’ refuse
refugee status to an asylum seeker who has made a repeat application for asylum
and created her own risk of persecution due to her activities after leaving the
country of origin. The Commission proposal would extend this to subsidiary
protection applications, and Member States want to go further – extending the
(now mandatory) exception to initial applications as well, subject to a new
threshold (the asylum-seeker’s activities were for the ‘sole or main purpose’
of making a claim for protection). For its part, the EP would keep the
exception optional and limited to repeat applications, while also adding a
safeguard for those asylum-seekers who (for example) ‘come out’ after arriving
in the EU, having been previously afraid to express their sexuality.

Similarly, the option to refuse
claims because the asylum seeker had an ‘internal flight alternative’ – ie he
could have fled to a safe part of the country of origin, like a supposed ‘safe
zone’ in Syria – would become mandatory. (The possibility of rejecting a claim
because an asylum seeker would arguably have been safe in a different country is the subject of
other proposals). The proposal makes this subject to safeguards: more elaborate
explanation of the substance of the idea; applying the main rules on
qualification first; shifting the burden of proof to the authorities; and not
requiring the asylum seeker to show that he exhausted all possibilities to move
within the country of origin. However, the Member States’ position would drop
the latter two safeguards. For its part, the EP would keep this clause
optional, drop the ‘sequencing’ rule, but add further safeguards.

Definition of ‘refugee’

The EU is bound by the Treaties to
follow the UN Refugee Convention, so the proposed law retains the basic idea
from that Convention that a ‘refugee’ is someone persecuted because of their
race, religion, political opinion, nationality or particular social group,
elaborating upon each of these concepts. The Commission proposal would clarify
in the preamble that LGBT people can form part of a ‘particular social group’
(confirming ECJ case
law), while the main text would confirm case law that asylum seekers can’t be
expected to hide (for instance) their sexuality
or religion
in their countries of origin. The proposal would also tighten the definition of
‘particular social group’ in that asylum-seekers would have to show in all
Member States that they both perceived
themselves as part of a distinct group and
were perceived as different by the rest of society. This would quash the
discretion that Member States now have to set higher standards, so that only one of those elements is necessary to
prove refugee status. Member States agree with this latter change, but the EP
is resisting it.

As for exclusion from refugee
status, where the current Directive elaborates a little on the relevant
provisions of the Refugee Convention, the new Regulation would enshrine the
basic elements of ECJ case law on the special status of some Palestinians (Bolbol
and El
Kott), and on the exclusion of persons strongly linked to terrorism (B
and D; the preamble Member States’ version also takes account of the recent
ECJ judgment in Lounani
on the exclusion of foreign fighters, discussed here).

In contrast, the proposals on withdrawal
of refugee status would tighten the existing law, making withdrawal mandatory
in more cases and clarifying the link with similar provisions in the rest of
the law (on that point, see the ECJ’s T
judgment, discussed here).
There would be a grace period to apply for another legal status and a mandatory
review of status at least the first time a refugee’s residence permit came up
for renewal. However, Member States reject the latter ideas (and the EP also
rejects the review clause).

Definition of subsidiary protection

The core definition of subsidiary
protection (a threat of serious harm deriving from the death penalty, torture
or similar treatment, or facing a specified threat from armed conflict) would
not be affected by the 2016 proposal – although the preamble would entrench the
relevant ECJ case law (Elgafaji
and Diakité).
However, the rules on exclusion from and withdrawal of subsidiary protection
status would be amended to (for the most part) match the parallel changes related
to refugee status; and the Council and EP take a comparable view of these
proposals. On one distinct point – withdrawing subsidiary protection status due
to less serious crimes – the Member States reject the Commission’s proposal to
make this ground mandatory, preferring to leave it optional for Member States.

Content of status

The 2016 proposal would make a
number of interesting changes in this area. First of all, the Commission’s
ambitious attempt to overturn the ECJ judgment
in T, and make all benefits for
refugees and persons with subsidiary protection contingent upon getting a
residence permit, has been rejected by Member States and the EP.

Secondly, an amendment in the
opposite direction: the family members of refugees or persons with subsidiary
protection who don’t qualify themselves for international protection would be
entitled to a residence permit. This would replace an ambiguous reference in
the current law to preserving ‘family unity’. However, there are already special
rules concerning the admission of family members of refugees set out in the EU’s
family
reunion Directive. So do two new sets of rules conflict? No, because a
clause in the preamble to the agreed Qualification Regulation says that the family
reunion Directive applies in the event of overlap (ie if the family member is ‘within
the scope’ of the Directive).

Usually, the two laws will not
overlap, for several reasons. A) the family reunion Directive does not apply to
family reunion with sponsors with subsidiary protection, at least if that
protection was granted on the basis of national or international law (sponsors
with subsidiary protection on the basis of EU
law are not expressly excluded, however). B) that Directive in principle only
applies to family members who are outside
the territory, whereas the Regulation conversely will only apply to family
members who are present on the
territory. However, Member States have an option to apply the Directive where
family members are already present;
only in that case would there be an overlap, decided in favour of the Directive
where the family members are within the scope of it.

Thirdly, the Commission aimed for
more harmonisation of the rules on renewal of residence permits, although the
Member States prefer to leave themselves with more flexibility. It will be
expressly mandatory to use the EU’s standard residence permit format for
refugees and others covered by the Regulation though.

Fourthly, there will also be more
harmonisation of the rules related to travel documents, which are issued by
Member States to beneficiaries of international protection in place of
passports, given that it would probably be unsafe for them to contact officials
from their country of origin. They will be valid for at least one year and will
be expressly subject to the EU’s passport security rules.

Fifthly, the provisions on
movement within the territory and benefits would be redrafted, to take account
of the ECJ case law in Alo
and Osso (discussed here),
which permits a link between limiting movements and the grant of benefits in
some cases.

Sixthly, the rules on access to
employment are strengthened by an obligation to ensure equal treatment as
regards work-related matters, including taking account of experience in an
occupation obtained outside the country of refuge.

Finally, there are further
changes designed to entrench control over beneficiaries of international
protection: Member States may make integration measures compulsory, and any
unauthorised movement between Member States can be punished by ‘resetting the
clock’ on acquisition of long-term residence status under the relevant
EU law. Both Member States and the EP aim to soften these proposals by ensuring
that integration courses are accessible and by allowing Member States to make
exceptions from the changes to the long-term residence rule.

Assessment

What impact will the agreed
proposal (still subject to further negotiation) have on the perceived ‘refugee
crisis’? Will it meet the objectives of deterring protection-related migration
as well as secondary movements, while harmonising national law further?

Certainly there are significant
steps towards harmonisation: the use of a Regulation; the removal of the right
to set more favourable standards; the disappearance of many options; and the
integration of relevant ECJ case law into the legislative text (making it more
visible for national authorities, courts, and legal advisers). However, the
European Parliament is still battling to keep some key rules optional, rather
than mandatory.

This goes to the second point:
will the new Regulation reduce standards as much as the Commission had hoped?
Here, the result is a mixed bag: some of the changes in the definition of
refugee will have that effect – unless the European Parliament successfully
resists them. However, the idea of mandatory reviews of status has been
dropped.

As for sanctioning secondary
movements, the reset of the clock as regards obtaining long-term residence
status might have some impact, although the main thrust of the planned sanctions
against secondary movement are found in separate proposals for amendment of
other asylum laws.

The deferral (at least by Member
States) of the impact of the new law for two years means that the new law would
(if this delay is accepted) have no immediate impact on the current perceived
crisis. However, the changes it would make to the definition of refugee status
may lead to fewer refugees being recognised – although again this is subject to
the success or failure of the EP’s attempts to resist such changes. In any
event, since many of the plans to deter both the initial and secondary movement
of people arguably needing international protection appear in other 2016
proposals (on reception conditions, the Dublin system and procedural rules), the
overall assessment of whether the EU is moving in a dramatically more
restrictive direction as regards asylum law depends more upon what happens with
those proposals over the months to come.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Pinterest

*Disclaimer: I was an independent adviser for a consultancy advising the European Commission on the implementation of and possible amendment of the current Directive.

Wednesday, 19 July 2017

Last week’s decision of the UK
Supreme Court (UKSC) in the same-sex pension rights case of Walker v Innospec
Ltd [2017] UKSC 47 generated plenty
of excitedcommentary
in the UK media. This mainly focused on the UKSC’s finding that it constitutes
direct discrimination on the basis of sexual orientation – and thus a breach of
EU law - for the rules of a employer’s contributory benefit scheme to deny
payment of a ‘spouse’s pension’ to a surviving member of a same-sex married
couple, in circumstances where such a pension would be paid to the surviving
member of an opposite-sex married couple. This finding is obviously significant,
both for its application at national level of the prohibition on direct
discrimination on the basis of sexual orientation set out in Article 2 of the
Framework Equality
Directive 2000/78/EC, and also its concrete impact on the acquired pension
rights of same-sex married couples in the UK. However, the media coverage
glossed over two other important elements of the judgment, which are of
especial interest from the perspective of EU law.

One of those elements relates to
the complex issue of the temporal effects of a finding that national law is
incompatible with EU legal requirements – namely the Court’s conclusion that,
in Lord Kerr’s words at para. 56, ‘the point of unequal treatment occurs at the
time that the pension falls to be paid’ and not when the benefit in question
was accrued, and that no basis existed for limiting the retrospective effect of
the judgment in line with the ECJ’s approach in Case C-262/88, Barber
v Guardian Royal Exchange Assurance Group [1990] ECR I-1889.

The other neglected dimension to
the case is of more general interest, especially in the run-up to Brexit –
namely how the case resulted in the Supreme Court disapplying the provisions of
Schedule 9 para. 18 of the UK Equality Act 2010,
insofar as they permitted the type of discriminatory treatment at issue in the
circumstances. In other words, in Walker,
the obligation on national courts to give direct effect to the requirements of
EU anti-discrimination legislation resulted in incompatible national
legislation being set aside – perhaps one of the last times this happens before
Brexit insulates UK parliamentary legislation from legal challenges based on EU
law or other fundamental rights standards.

The case involved a legal challenge
by a former employer of Innospec Ltd against their refusal to agree to pay a
survivor’s pension to his same-sex spouse if he died first, even though such a
benefit would have been paid out to Mr Walker’s spouse had she been a woman.
Innospec Ltd justified this exclusion in part by reference to the provisions of
Schedule 9 para. 18 of the 2010 Act, which permitted employers to restrict
access to occupational benefits where the right to that benefit accrued before
5 December 2005 (the date same-sex couples became legally entitled to enter
into civil partnerships).

At first instance, Mr Walker won
his claim that he had been subject to direct and indirect discrimination on the
grounds of sexual orientation, with the Employment Tribunal concluding that
Schedule 9 para. 18 could be applied in a manner compatible with the relevant
requirements of Directive 2000/78/EC. Subsequently, however, Innospec appealed
successfully against that decision, with the Court of Appeal concluding that Mr
Walker had been subject to direct discrimination on the basis of his sexual
orientation but that the principles of ‘non-retroactivity’ and ‘future effect’
as developed in the case-law of the CJEU meant that the prohibition on
discrimination applied only to benefits accruing after the transposition of the
Directive in December 2003. (Mr Walker had taken early retirement in March
2003.)

This conclusion was criticised by
Robert Wintemute amongst others, in particular in a case-note in the Industrial
Law Journal in 2016 (‘Unequal Same-Sex Survivor’s Pensions: The EWCA
Refuses to Apply CJEU Precedents or Refer’ (2016) 45(1) Ind Law J 89-100), and
his criticisms were subsequently explicitly cited by Lord Kerr in giving the
judgment of the majority of the Supreme Court reversing the decision of the
lower court.

In brief, the Supreme Court initially
applied the established case-law of the CJEU in cases such as Case C-267/06, Maruko
[2008] 2 CMLR 32 and Case C-147/08, Römer
[2011] ECR I-3591, and confirmed that less favorable treatment by an employer
of same-sex partners as compared to opposite-sex partners who have entered into
the same or equivalent type of legally recognised relationship will constitute
direct discrimination on the grounds of sexual orientation.

Turning to the question of the
remedy and by extension the legal effect of Schedule 9 para. 18, the UKSC went
on to survey the relevant case-law of the CJEU dealing with issues of the
retrospective effect of judgments. It concluded that the ECJ’s decision to
restrict the temporal effect of its finding of sex discrimination in the
occupational benefits case of Barber was
a judicial technique that should only be applied ‘in the most exceptional
circumstances and where the impact [of a judgment] would be truly
“catastrophic”’ (para. 44).

The Supreme Court further
concluded that the CJEU case-law established that the discriminatory treatment
in question should be viewed as taking effect at the time when the pension was
due to be paid, in part because it was only at that point of time that the
spousal obligations at issue crystallised into tangible form. In so doing, they
rejected suggestions by counsel based on views expressed by AG Van Gerven in
Case C-109/91, Ten
Oever [1993] ECR I-4879 that pension entitlements accrued as they were
earned, and therefore that any discrimination occurring would have predated the
date of transposition of the Directive. The UKSC therefore concluded that the
provisions of Schedule 9 para. 18 of the 2010 Act could not be applied insofar
as they precluded liability arising for the discriminatory behaviour in
question, which was incompatible with the requirements of Directive 2000/78/EC
and the general principle of equal treatment as confirmed to exist by the CJEU
in case C-555/07, Kücükdeveci
[2010] 2 CMLR 33.

The Walker judgment is thus
particularly interesting for three reasons: (i) the faithful application by the
UKSC of the case-law of the CJEU in relation to discrimination against same-sex
partners; (ii) the Supreme Court’s interpretation of the relevant CJEU case-law
relating to the temporal effect of findings of discrimination in the context of
occupational benefits, which gives strong effect to the principle of
non-discrimination; and (iii) the way in which it illustrates how parliamentary
legislation can be disapplied if its conflicts with fundamental rights secured
under EU law, in particular the right to non-discrimination.

After the process of Brexit is complete, this form of legal protection of equality is likely to fall away, along with the supremacy of EU law in general. Walker may thus mark one of the last instances where EU law takes effect as a trump card within the British legal system; as such, it is striking that its effect was to disapply a statutory provision designed to limit liability for discriminatory behaviour.

Friday, 7 July 2017

After a series of cataclysmic
political events, most people can empathise with the stress
and anxiety born out of the subsequent uncertainty. At this time, the
people who are enduring the
greatest burden are those who have enjoyed a right to free movement
exercised in good faith without concern that it might be taken away. Such is
Brexit: the source of frustration, a nuisance of the daily news to many, but
for EU
citizens in the UK and UK nationals living in other Member States, it holds
the potential to fundamentally change their very way of life. Without for a
moment disregarding the (moral and economic) significance of the former group,
we focus here on the latter.

Despite the hopes for "a
magnanimous gesture on the part of the Prime Minister,” the UK government
has maintained its stance that a unilateral offer to EU-27 nationals resident
in the UK on ‘Brexit Day’ would compromise its negotiating position. Thus, its
proposal is founded on the condition of reciprocity. Of course, we remain
uncertain as to the outcome of the negotiations. Nevertheless, we can consider
the extent to which the UK’s position is a “fair and serious”
offer (as the UK government has portrayed) by comparison with the EU’s
prior counterpart proposal.

According to the UK negotiating
position, upon the UK's exit from the EU, EU citizens in the UK will be
required to apply for a new residence status within a grace period of two
years. Despite promises of a “streamlined” procedure with incurred fees set at
a “reasonable level”, the proposal has faced criticism
for subjecting even those who have already obtained a certificate of permanent
residence to this new application process. Reciprocity on these terms would
dictate that UK nationals in the EU-27 must therefore expect analogous
treatment under their post-Brexit status of “third country nationals” (TCNs).
They would need to apply for a new residence status under the immigration law
of the EU Member State in which they reside. And again, if reciprocity applies,
while those who arrive before the yet-to-be-specified date will be granted a
temporary status that allows them the opportunity to accrue the vital 5 years
of residence, those who arrive at any time thereafter will have no such
protection or special treatment. Instead, they would be subject to ordinary
immigration law.

Further, any disputes would have
to be settled through national courts in the EU-27 country, without any
recourse to a supranational authority (such as the CJEU) for a definitive
settlement. It would be significantly more difficult to enforce residence and
other rights than it is at present.

Under the UK negotiating position,
those EU nationals who are successful will be granted what is referred to as
"settled status" in UK law pursuant to the Immigration Act 1971. This
is subject to certain criteria, including that the applicant must have been
resident in the UK before an (as yet un-) specified date (that will fall
between 29 March 2017, when the Article 50 letter was sent, and Brexit Day) and
have completed a period of 5 years’ continuous residence. It is worth noting
here that the UK government has not outlined its definition of “continuous
residence” and, given the Prime
Minister’s hostility towards the CJEU, it cannot be presumed that it
mirrors that accepted in EU law.

Again, if applied reciprocally,
UK nationals currently resident in the EU-27 (as EU-27 nationals currently
resident in the UK) would be potentially precluded from relying on the benefits
of free movement to visit family or for work-related events, for example, in case
such visits interrupt their period of continuous residence for longer than
permitted under the relevant law. Further, as Strumia notes, this
means that the UK’s present protection of free movement is meaningless for EU
citizens living in the UK, as any such exercise could be to the detriment of
their post-Brexit application. Like so
many other issues, the devil is in the detail and thus, it remains to be seen
just how “smooth
and simple” acquiring these new rights will be.

Turning to the more specific
issues of pensions, child benefits, education, and healthcare, the UK’s
negotiating position offers a little more information. On pensions, the UK’s
position is explicit that ‘the
UK will continue to export and uprate the UK State Pension within the EU’.
Given that 21% of UK nationals in EU-27
countries are over the age of 65, this is a significant commitment. Likewise, the current
position on child benefit continues: individuals resident before Brexit Day
will be able to export any child benefit to which they are entitled in their
country of residence, which is of great importance for divorced and separated
families. On education, the right of UK students to remain in the respective EU-27
country applies up until course completion (and not beyond) and those with
residence rights have the same access to tuition fees and any maintenance
grants as nationals of the host country.

Healthcare, however, poses more complexities. The UK government
has proposed a new arrangement ‘akin to the EHIC scheme’ (i.e. the European
Health Insurance Card, which currently entitles those covered by their home
health care system like the NHS to medical treatment in another EU country). There are non-EU states incorporated within
the EHIC scheme, so in theory the UK could join post-Brexit. But in practice,
free movement rights will have to be included. Otherwise, the technical and
administrative logistics, outside of the current arrangements for coordination
of social security, may prove insuperable. The EU coordination of social
security is a rules-based system: it is not a matter of politically negotiated
bespoke arrangements. A reciprocal deal (to be part of the rules-based system)
may be feasible. Access to health care outside such a system (without free
movement, without the possibility of CJEU oversight) is unlikely to be so. If that is
so, in principle a reciprocal deal would leave UK nationals resident in the EU
to fall back on national law to determine their health care
entitlements.

The UK’s negotiating position does not explicitly address
a host of other practicalities for UK nationals resident in the EU-27 (and vice
versa): equal access to housing; equal tax benefits; entitlement to move to and
reside in other EU Member States; and equal entitlements to union membership.
This is far from offering the claimed reassurance in the face of uncertainty.

In the absence of such details, the only guiding light is:
"After we leave the EU, the UK will no longer be subject to EU law. Free
movement rights will come to an end and therefore cannot be carried forward, as
an EU legal right, into the post-exit UK legal regime.”

If this is the default, and reciprocity is the basis for
future entitlements, the effects for UK nationals in the EU-27 would be to face
the same prospect of rights reduction as their EU citizen counterparts
in the UK.

Applicable EU law

However, this analysis on the basis of reciprocity ignores
the fact that the EU itself alreadyhasrulesconcerning the treatment of non-EU
TCNs resident in its Member States. The UK’s rejection of an ‘acquired
rights’ approach or, indeed, a bespoke proposal of any kind marks an
intention to simply align the status of EU nationals with UK immigration law,
with all the procedural and substantive implications that entails. But that
approach is not available to the EU-25 (Ireland and Denmark have opted
out of this law), who are bound by EU law on non-EU migrants, in particular
by the EU’s
Long-Term Residence (LTR) Directive. The LTR Directive brings the position
of UK nationals resident in the EU-25 within EU law as it provides legal
protection to some TCNs. This is a Directive that can be - and has been -
enforced before national courts, and is subject to the jurisdiction of the CJEU.
(There is also
some EU legislation on the position of non-EU citizens who don’t yet qualify
for LTR status).

Articles 7 and 8 of the LTR
Directive govern the scheme by which long-term resident status is acquired and
the residence permit granted. The LTR Directive holds the process to a certain
standard, imposes common criteria, requires the grant of LTR status where
conditions are satisfied (Article 7 (3), Iida
para 39), and guarantees certain rights where applications are successful.
Article 7(2), for example, requires applications to be processed within 6
months, and Article 10 states that reasons must be given for decisions.

Subject to certain conditions
(outlined below), the Directive confers equal treatment of TCNs to nationals in
the host country in numerous areas. These include: access to employment;
self-employment; recognition of qualifications; tax benefits; and pensions. The
UK’s negotiating position, inasmuch as it fails to offer these matters on a
reciprocal basis, appears to assume that this aspect of EU law does not exist.

The entitlements under the LTR
Directive (and possibly parallel
national laws on long-term residence) are extensive. Assuming that it would
be the applicable law if the UK’s proposals were to succeed, or indeed if the
UK were to leave the EU without successfully negotiating a withdrawal
agreement, this raises a question. The position of UK nationals in the EU-27
would obviously be better if the EU proposal prevailed (particularly for those
who do not have long-term residence yet). But how much worse off would UK
nationals in the EU-25 be under the UK proposals as compared to the EU’s offer?
(The position of UK nationals in Ireland will presumably be a special case
because of the common
travel area; UK nationals in Denmark would have to rely on Danish law.)

The EU proposal seeks to maintain the current status of EU
citizens in the UK and UK nationals in the EU-27, but without the framework of
EU citizenship which is conditional on membership of the EU. By comparison, the
LTR Directive has been described as creating a “subsidiary form of EU citizenship”.

The LTR Directive offers TCNs a wide range of rights equal
to that of nationals in their host country. It removes Member States’ direct
control by outlining that where conditions are met and where there is no
Article 6 exception (for public policy or public security), long-term resident
status must be granted (Article 7(3)). Ordinary immigration law is not subject
to those kinds of external oversights or constraints. However, LTR status
remains far from parity with EU citizenship status and, in turn, the EU’s
proposal. The material rights are less, the scope is more restrictive, and the
acquisition process more arduous.

Equal treatment in respect of social assistance and social
protection can be confined to core benefits (Article 11(4)), as defined in the
ECJ ruling in Kamberaj. Retention of restrictions to
access to employment or self-employed activities where these activities are
lawfully reserved to nationals, EU or EEA citizens is also permitted (Article
11(3)(a)). Further, acquiring LTR status does not confer the free movement rights
within the EU that its citizens are accustomed to; Article 14 outlines the
conditions which must be met to acquire the right to reside in a second Member
State for a period exceeding three months. The right to family reunification
represents another stark contrast: for TCNs, the highly restrictive Directive
2003/86/EC applies, while the EU proposal guarantees that the Withdrawal
Agreement would apply to family members, ‘regardless of their nationality, as
covered by Directive 2004/38’. This covers both current and future family
members.

Turning to scope, the EU proposal is unequivocal: it
captures all 'UK nationals who reside or have resided in EU27 at the date of
entry into force of the Withdrawal Agreement', UK nationals who work or have
done so in EU27 at that date whilst residing in the UK or another EU27, UK
nationals covered by Regulation 883/2004, and (in all cases) their family
members. Conversely, Article 3(2) of the LTR Directive outlines numerous
exclusions, including TCNs resident due to pursuit of studies or vocational
training, seasonal workers, and cross-border service providers.

Further, in exchange for this more limited status, there
are a greater number of conditions to satisfy. Beyond its mutual basis with the
EU proposal’s requisite 5 years continuous legal residence, the LTR Directive
also sets out that TCNs need to: provide evidence that they possess sufficient
stable and regular resource to maintain themselves and their family members
without recourse to the host Member State's social assistance system; have
adequate sickness insurance; and, in some cases, demonstrate compliance with
integration conditions imposed by national law. Necessarily, implementation of
the UK proposal would therefore subject UK nationals in the EU-27 to a much
more demanding application process with likely lower success rates than the
more black-and-white EU proposal.

Undoubtedly then, the EU proposal is far more favourable
to that offered by the UK. This is not unexpected; while the EU recognises the
valuable contribution made by TCNs to the Member States in which they reside,
inevitably a proposition vested in the interests of the 3.15 million EU citizens in the UK will comprise a better
deal than the residual LTR Directive position. And, for negotiating purposes,
offering identical conditions for UK nationals in the EU-27 was necessary.

Nonetheless, were the UK proposal to prevail, its
nationals are still afforded better protection than their EU citizen
counterparts in the UK. The LTR Directive and Article 7(3) in particular
represent a safety net to which the EU-25 are held to account. There is no such
equivalent for EU citizens in the UK who, post-Brexit, would be entirely at the
mercy of ordinary immigration law were the UK’s position adopted.

Non-reciprocity

There is an undeniable gap between the EU negotiating
position and the LTR Directive. However, it is to some extent quantifiable. In
contrast, the extent of the chasm between the current position of EU nationals
in the UK and the UK’s proposal for their post-Brexit future is not yet known.
Moreover, the UK’s silence on numerous existing rights does not bode well. While
the comparable certainty of the LTR Directive is enough to be relatively
reassuring to UK nationals, those who do not yet qualify for the status will be
subject only to national immigration law and thus face the same level of
uncertainty as EU citizens in the UK.

It might seem surprising that the UK’s response to the EU
proposal is so weak. But perhaps this is somewhat accounted for by the
difference in numbers: in comparison to the 3.15 million EU citizens in the UK,
there are an estimated 900,000 UK nationals in the EU-27. Most of them do not vote in UK
general elections. Perhaps they are the ‘sacrificial lambs’ of these negotiations. But this
fails to account for the 60% of UK nationals who want to keep their EU citizenship. (Notably, this number increases
by 20% for the up and coming political force that are the 18-24 year olds.) If
these polls are to be believed, the UK
government has a greater investment in a good deal than their proposals implied
they thought to be the case. Lest it further alienate the electorate, the UK
government should reconsider the EU’s position, taking into account applicable
EU law, and provide an injection of reality into its negotiating stance.